CORRECTED-Texas university cannot ban student group's drag shows, US appeals court rules

By Nate Raymond

Aug 18 (Reuters) - West Texas A&M University cannot bar an LGBTQ student group from hosting charity drag shows on its campus over the objections of the school's president, a divided federal appeals court ruled on Monday.

A 2-1 panel of the New Orleans-based 5th Circuit Court of Appeals ruled that a judge in Texas wrongly concluded that the school's president had not likely violated the group's free speech rights by canceling a drag show it planned in 2023 because such performances are "misogynistic" and mock womanhood.

Spectrum WT had sued in March 2023 after the school's president, Walter Wendler, barred a charity drag show set for that month from going forward even though, he said, "the law of the land appears to require it."

U.S. District Judge Matthew Kacsmaryk, an appointee of Republican President Donald Trump, rejected the club's arguments, saying it had not clearly established that all drag shows are inherently covered by the U.S. Constitution's 1st Amendment's protections for free expression.

Kacsmaryk, a former a Christian legal activist, said such performances can involve "sexualized conduct" that can be regulated to protect children in the audience from "lewdness."

But U.S. Circuit Judge Leslie Southwick, writing for the panel's majority, said he saw no basis for Kacsmaryk's conclusion, as it was evident that the planned drag show had an intended message expressing support for LGBTQ rights.

"Based on the record before us, the district court erred in concluding that the plaintiffs were not substantially likely to succeed on the merits of their First Amendment claim," Southwick wrote.

Given that Wexler while the litigation was pending decided against permitting any other drag performances, Southwick, an appointee of Republican President George W. Bush, said a preliminary injunction was warranted.

JT Morris, a lawyer for the student group at the Foundation for Individual Rights and Expression, called the ruling "a victory not just for Spectrum WT, but for any public university students at risk of being silenced by campus censors."

Representatives for Texas Attorney General Ken Paxton, a Republican whose office defended Wexler, did not respond to a request for comment.

Southwick's opinion was joined by Senior U.S. Circuit Judge James Dennis, an appointee of Democratic President Bill Clinton, and prompted a dissent by U.S. Circuit Judge James Ho, a conservative Trump appointee.

The judge said Spectrum WT's position could not be squared with the U.S. Supreme Court's ruling in 2010 in a different campus 1st Amendment case, Christian Legal Society v. Martinez.

In that case, a 5-4 court with the court's liberals in the majority held that a university could deny recognition to a Christian student group that bars gays and nonbelievers because of a policy requiring membership in clubs to be open to all.

Ho said he disagreed with that ruling but was bound to follow its mandate that courts defer to university officials when regulating student activities to ensure an inclusive educational environment. That included West Texas A&M University officials' conclusion "that drag shows are sexist, for the same reason that blackface performances are racist," he said.

"If CLS requires respect for university efforts to protect members of the LGBT community, then it surely requires respect for university efforts to protect women," Ho wrote.

The case is Spectrum WT v. Wendler, 5th U.S. Circuit Court of Appeals, No. 23-10994.

For Spectrum WT: JT Morris of Foundation for Individual Rights and Expression

For Wendler: Joseph Mazzara of Office of the Texas Attorney General

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